IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40599
Conference Calendar
ARNOLD MACIAS,
Plaintiff-Appellant,
versus
JERRY D. WHITTON ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:98-CV-66
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April 19, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Arnold Macias, Texas inmate # 465951, proceeding pro se and
in forma pauperis (IFP), appeals the district court’s dismissal
as frivolous, pursuant to 28 U.S.C. § 1915, of his civil rights
complaint, 42 U.S.C. § 1983. Macias’ motions for remand and
reinstatement of his § 1983 complaint, for a hearing, for
“Justification En Banc,” and for appointment of counsel are
DENIED.
The district court may dismiss an IFP complaint as frivolous
if it lacks an arguable basis in law or fact. 29 U.S.C.
§ 1915(e)(2)(B)(i); see Siglar v. Hightower, 112 F.3d 191, 193
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-40599
-2-
(5th Cir. 1997). “A complaint lacks an arguable basis in law if
it is based on an indisputably meritless legal theory, such as if
it alleges the violation of a legal interest which clearly does
not exist.” Siglar, 112 F.2d at 193. We review the dismissal of
an IFP complaint as frivolous for an abuse of discretion. Id.
The district court dismissed Macias’ § 1983 complaint
pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Macias has not identified error in the district court’s reasons
for dismissing his § 1983 complaint, and thus, he has abandoned
his appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987)(when appellant fails to
identify error in the district court's analysis, it is the same
as if appellant had not appealed that judgment). Macias’
assertions that the district court did not enter his complaint
against Judge Calhoon and did not rule on his motions are
frivolous.
Macias’ appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is dismissed. See 5TH CIR. R.
42.2.
The dismissal of this appeal as frivolous and the dismissal
in the district court of the complaint as frivolous count as two
separate “strikes” for purposes of 28 U.S.C. § 1915(g). We
caution Macias that once he accumulates three strikes, he may not
proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.
No. 98-40599
-3-
DISMISSED AS FRIVOLOUS; WARNING ISSUED; MOTIONS DENIED.